Bava Kamma Chapter Ten Mishnayoth Three and Four



Mishnah three deals with the problem of stolen property being sold and acquired in the marketplace and the rights of the original owner to have his property returned to him.

Mishnah four deals with the case where a person saves his fellow’s property, even though by doing so he causes a loss to his own property.  The mishnah is concerned with the obligation to compensate the rescuer for his loss of property.


Mishnah Three

1)                     If a man recognized his utensils or books in another’s hands and a report of theft had gone out in the town, the purchaser swears how much he paid and takes this price [from the owner and restores the goods].

2)                     But if [such a report had] not [gone out], he [the original owner] does not have the power, for I might say that he had first sold them to another and this one bought it from him.


Explanation—Mishnah Three

In the case mentioned in this mishnah, Reuven sees that Shimon has something that belonged to him (Reuven) originally.  Shimon claims that he bought the item in the marketplace from another person.  If it was known in the city that these objects had been stolen from Reuven, for instance if he had complained about them before he saw them in Shimon’s possession, then Shimon must swear how much he had paid for the items and Reuven will pay Shimon and take back his possessions.  In other words, even if Shimon does not wish to sell the items, since it is known that they were originally Reuven’s, Shimon must sell them.  However, Reuven will in any case be obligated to pay Shimon whatever Shimon had paid for the object.

If, however, there is no report of that the item was stolen from Reuven, we do not allow him to force Shimon to sell him the items.  This is true even if it is known that the items once belonged to Reuven, for instance it was a piece of clothing that everyone had seen him wear.  Since Reuven cannot prove that he did not sell the items to someone else, and that Shimon then bought them from this person, he cannot force Shimon to sell them back.


Mishnah Four

1)                     If one came with his jar of wine and the other came with his jug of honey and the jug of honey cracked, and the other poured out his wine and saved the honey [by receiving it] into his jar, he can claim no more than his wages.

a)                                           But if he had said, “I will save what is yours and you will pay me the value of mine,” [the owner of the honey] is liable to pay him back.

2)                     If a flood swept away a man’s donkey and his fellow’s donkey, and his own was worth 100 [zuz] and his fellow’s was worth 200 [zuz], and he left his own and saved that of his fellow, he can claim no more than his wages.

a)                                           But if he had said, “I will save what is yours and you will pay me the value of mine,” he is liable to pay him back.


Explanation—Mishnah Four

Both sections of our mishnah deal with what is essentially the same scenario.  A person who has something of lesser value helps rescue the greater-valued property of another person, thereby losing his own property.  The person who helped wants to receive full payment for what he had lost.  For instance in section two, the owner of the donkey worth 100, who lost his donkey, wants the owner of the donkey worth 200, whom he had saved, to pay him 100.  He might say to him that if he had not helped, he would have lost his donkey, and therefore he saved him 200 and all he wants back is the 100 which he lost.  The same is true in the case of the wine and honey:  the owner of the wine who rescued the honey wishes to recover the value of his lost wine .  Honey is a more expensive item than wine (think about how much harder it is to produce).  The wine owner, realizing that his wine was of lesser value, dumped out his wine in order to rescue the other person’s honey.  All he asks in return is that the person repay him for the loss of the wine.  In both cases the mishnah says that if the rescuer saved the other person’s property without being asked he only receives a minimum wage for his work.  If, however, he told the other person before he rescued his property, that he was doing so on the condition that he be fully compensated for his own loss of property, then he does receive full compensation for his loss.


Questions for Further Thought:

·                      Mishnah Three:  If the items were stolen from Reuven, why must he pay Shimon to give them back?

·                      What is the legal impact of the “report” mentioned in section one of mishnah three?

·                      Why does mishnah four need to teach both examples?  Could we not have learned one from the other?  What might we have said had only one example been included in the mishnah?